One lesser-noted aspect of the top two open primary system is that it requires the prohibition of write-in candidates in the general election run-off. If anyone could wage an upstart write-in campaign following the primary, it would completely undermine the apparent goal of the top two system as such, namely, restricting the number of candidates up for election to just two. The hasty manner in which the law implementing top two in California was passed resulted in a number of contradictions and inconsistencies in the state's elections code. Today's column at CAIVN lays out the situation in the Golden State and takes a look at a newly-amended law that would ban write-in candidates and write-in voting in all general elections covered by the top two system:

A little-known provision of the law implementing California's top-two
open primary system banned the counting of write-in votes on general
election ballots. The State Senate is now considering legislation that
would prohibit write-in candidates and write-in voting at the general
election for voter-nominated offices. The write-in ban is currently
being challenged in court.

How many write-in votes were cast in the July 12th Special General
Election for US House in California's 36th Congressional District? No
one knows because they were never counted. As I reported here at CAIVN
in July, the implementation of the top-two open primary system resulted
in a contradiction between two sections of California's elections code,
one which states that voters may cast write-in votes in all elections
and another which states that some write-in votes shall not be
counted.

Section 15340
states that every voter may "write the name of any candidate for public
office . . . on the ballot of any election." However, the law
instituting the top two system placed a separate section on the books
which prohibited the counting of write-in votes in general elections
covered by the new primary process. Section 8606
states: "A person whose name has been written on the ballot as a
write-in candidate at the general election for a voter-nominated office
shall not be counted." As such, section 8606 is unconstitutional.
Article 2, Sec. 2.5 of California Constitution requires that all votes
must be counted: "A voter who cast a vote in an election in accordance
with the laws of this State shall have that vote counted."

Today, the State Senate is scheduled to vote on AB 1413, a bill that
would address this inconsistency by banning all write-in candidates from
the general election ballot for voter-nominated offices and removing
the space for write-in votes from the those ballots. The bill under
consideration in the Senate is substantially different from the one that
was initially proposed in the Assembly and passed through committee.
AB 1413 was introduced into the legislature on March 14th by the chair
of the Assembly's Committee on Elections and Redistricting, Paul Fong.

As originally written,
the bill would have provided for minor changes to the state's campaign
finance laws by amending aspects of the Political Reform Act of 1974.
In this form, it passed through the Assembly and to the State Senate
floor and was on file to be considered in the Senate this week.
However, on the Friday before Labor Day, the bill was amended and
effectively rewritten by Assembly Member Fong in a manner that
significantly alters the state's Elections Code, addressing the
inconsistency noted above, among others.

Under the newly-amended and rewritten bill, section 15340 of the
Elections Code, noted above, would prohibit write-in votes on the
general election ballots for voter-nominated offices: "Except for a voter-nominated office at a general election, each
voter is entitled to write on the ballot the name of any candidate for
any public office." In conjunction with this change, section 8606 of
the Elections Code, noted above, would prohibit write-in candidates from
running in the general election: "Notwithstanding any other provision
of law, a person may not be a write-in candidate at the general election
for a voter-nominated office." The bill would further provide that the
space for write-in votes be removed from all general election ballots
for voter-nominated offices.

California election law has provided
space for write-in candidates on general election ballots for partisan
office since 1891, according to ballot access expert Richard Winger.

Assemblyman Fong may well have been spurred to action by a pending
lawsuit against a number of provisions within the Top Two Primary Act.
On August 24th, Chamness v. Bowen moved from the US District
Court to the Ninth Circuit Court of Appeals. A write-in candidate for
the July 12th Special Election for CD 36 is seeking to intervene in the
suit to challenge the disenfranchisement of write-in voters and
write-in candidates.

The standing plaintiffs in the suit are challenging the law's party
preference ban – which prohibits candidates who are not affiliated with a
party officially recognized by the state from stating their party
preference on the ballot –, as well as provisions that prohibit
candidates from describing themselves as 'Independent' on the ballot.

Fong's amended bill systematically replaces the phrase "party
preference" with the phrase "party affiliation" throughout the Elections
Code, and explicitly repeals a provision that equates the term
"Independent status" with "No Party Preference" (i.e. section 325).

The title descriptions of the bill seem to demonstrate the absurdity of
the amendment process in a manner that borders on high satire. The original
title description of the bill read: "An act to amend Sections 81008,
83109, and 84211 of the Government Code, relating to the Political
Reform Act of 1974." It is now officially known as:

UPDATE: According to Ballot Access News, the California State Senate's Election Committee has now called for a hearing on the newly-amended bill ahead of any vote. If you feel strongly on this issue, Richard Winger is urging folks to contact Assembly Member Fong and the State Senate President Darrell Steinberg. Follow the links for the contact info.

UPDATE II: According to Richard Winger,
who has been following developments regarding this bill very closely,
no hearing was held on the measure today, and the legislature has wisely
decided to put off consideration of the bill until next year, thus
allowing more time for hearings and public debate.

7 comments:

Looks like it's time for a constitutional amendment to set federal standards for election law across the board, if that's what's necessary to kill this thing. No one should have the power to limit the number of candidates for any office. No appeal to majoritarianism, which is the only imaginable justification for the California plan, can trump people's right to nominate as many candidates for office as they see fit in their various assemblies.

I'm a little puzzled by the objection. In a top two open "primary", the "general election" is essentially a run-off election. One can still write candidates into the first round, right? The point of a run-off election is to eliminate those who didn't get enough votes the first time around (whether they are write in candidates or not).

That is correct, David. Write-in candidacies and voting are still allowed in the primary. I think a case can be made that the top two system can be understood and organized as an effective runoff style system. But, as it is currently organized in California, that would be a stretch: the primary is in June, FIVE MONTHS before the general election, whereas in a typical runoff system, the runoff election is usually held no more than four or six weeks after the general election.

Well, I understand the concern that the "run-off election" is so much later. Though I would say that efforts should then be directed at moving the two votes closer together, rather then undermining the runoff nature of the reform.

Top two open primaries a crude run-off system. They aren't a great implementation of run-off, but they can be a first step toward a better system.

The vast majority of people never vote in primaries. This puts far more power into the hands of primary voters - a group of people that are immensely different than that of the people at large, and makes it next to impossible for non major party candidates to get in front of the general electorate, since they have a shorter calendar to play catch up with all of the advantages the two major parties have.

"The vast majority of people never vote in primaries. This puts far more power into the hands of primary voters - a group of people that are immensely different than that of the people at large, and makes it next to impossible for non major party candidates to get in front of the general electorate, since they have a shorter calendar to play catch up with all of the advantages the two major parties have."

So doesn't this mean that the problem is terminology and timing? If you called the primary "the first round" and the general election "the second round" and moved them both to november, wouldn't that address all these issues?